SUBJECT:

Serban I. Cocioba, M.D.,

Petitioner,

I sustain the decision of the Inspector General (I.G.) to exclude Petitioner, Serban I. Cocioba, M.D., from participating in the Medicare, Medicaid and all federal health care programs (as defined in section 1128B(f) of the Social Security Act (Act)) for a period of five years. I find this action is required under section 1128 of the Act (also codified at 42 U.S.C. § 1320a-7), based on Petitioner's conviction, in the United States District Court, Southern District of New York, of a criminal offense related to the delivery of an item or service under the Medicare program. I find that I do not have the authority to reduce or eliminate the exclusion period in this case because the exclusion imposed by the I.G. is for the minimum period required under the Act. I further find that I do not have the authority to waive an exclusion imposed under the Act for a physician who is the sole community physician or sole source of essential specialized services in a community. Finally, I find that I do not have jurisdiction to rule on Petitioner's constitutional claims.

This case is before me on Petitioner's September 24, 1999 request for a hearing to contest the I.G.'s August 31, 1999 letter notifying him of his exclusion (notice letter). In this notice letter, the I.G. informed Petitioner that his exclusion was authorized under section 1128(a)(1) of the Act because Petitioner had been convicted of a criminal offense related to the delivery of an item or service under the Medicare program.

I convened a prehearing conference, by telephone, on November 10, 1999. Both parties appeared through counsel and agreed that the case could be decided based upon written submissions in lieu of an in-person hearing. I established a briefing schedule and determined that the issues to be briefed were: (1) whether the administrative law judge has the authority to consider the imposition of a lesser period of exclusion than that imposed by the I.G. against Petitioner; and (2) if authority to impose a lesser period of exclusion exists, how long a period of exclusion would be appropriate in this case.

Both parties timely submitted written briefs accompanied by documentary evidence. Petitioner submitted as his Petitioner's Exhibit (P. Ex.) A to his brief dated January 6, 2000, a memorandum (with attachments A - K) which he had submitted to the I.G. on June 25, 1999, prior to the issuance of the notice letter. In the absence of objection, I am receiving P. Ex. A into evidence. The I.G. submitted I.G. Exhibits (I.G. Ex.) 1 - 4 with the I.G.'s response brief dated February 7, 2000. In the absence of objection, I am receiving into evidence I.G. Ex. 1 - 4.

1. At all times relevant to this case, Petitioner was a licensed physician practicing in the State of New York. I.G. Ex. 2, at 2.

2. Petitioner pled guilty to one count of unlawful receipt of kickbacks in return for referral of Medicare patients to American Open MRI Center, pursuant to 42 U.S.C. § 1320a-7b(b)(1), before the United States District Court for the Southern District of New York. I.G. Exs. 3, 4.

3. Petitioner's guilty plea constitutes a conviction of a criminal offense related to the delivery of a health care service under the Medicare program. I.G. Exs. 1-3.

4. The Court sentenced Petitioner to two years of probation with a period of six months of home confinement, fined him $10,000, and required him to pay an assessment of $100. P. Ex. A (attachment J), at 25, 27; I.G. Ex. 4.

5. By notice letter dated August 31, 1999, Petitioner was notified by the Office of Inspector General of his five-year exclusion from participating in the Medicare, Medicaid, and all federal health care programs, pursuant to section 1128(a)(1) of the Act.

6. Section 1128(a)(1) of the Act provides for the mandatory exclusion from Medicare, Medicaid, and all other federal health care programs of individuals convicted of a criminal offense related to the delivery of a health care item or service under Medicare or any State health care program.

7. The minimum period of exclusion for a person excluded under section 1128(a)(1) is five years.

8. Petitioner's exclusion is for the minimum period required by law.

9. An exclusion required under section 1128(a)(1) of the Act may be waived if the excluded individual is a sole community physician and/or a sole source of essential specialized services in a community. Such a waiver may only be issued by the Secretary of the Department of Health and Human Services (Secretary) upon the request of a State. Act, section 1128(c)(3)(B).

10. An administrative law judge is without authority to issue a waiver from the minimum mandatory period of exclusion.

11. An administrative law judge is without authority to declare any part of the Act unconstitutional. 42 C.F.R. § 1005.4(c)(1).

In this case, the I.G. is only seeking to impose the minimum period of exclusion required by law for a person convicted of a criminal offense related to the delivery of a health care item or service under Medicare or any State health care program. Petitioner is arguing that I should be able to waive the exclusion because he is a sole community physician or sole source of essential specialized services in his community. However, the Act as written prevents me (or the Secretary) from waiving his exclusion, since it provides that such a waiver can only be granted by the Secretary on request of a State. Petitioner asserts that if the Act prevents me from even considering such a waiver request, than the Act is unconstitutional for a variety of reasons. It is well established, however, that an administrative law judge has no jurisdiction to declare a statute such as the Act, or regulations issued under a statute, unconstitutional.

I need not make detailed findings regarding the nature of Petitioner's criminal offense, since the exclusion imposed by the I.G. is the minimum required by law and since the evidence introduced by the I.G. supports the I.G.'s basis for excluding Petitioner. Thus, the principal issue raised by Petitioner, and fully briefed by both parties, is whether Petitioner's exclusion should be waived because he is either a sole community physician or sole source of essential specialized services in the community.

While both parties have addressed the issue of whether Petitioner meets either of these two waiver provisions, the I.G. points out, and Petitioner generally recognizes, that the Act, regulations, and Departmental Appeals Board (DAB) case law are consistent in reaching the conclusion that, as an administrative law judge, I do not even have the authority to consider this issue.

The Act provides that the minimum period of exclusion under section 1128(a)(1) will be five years --

Act, section 1128(c)(3)(B). The Secretary has delegated the authority to evaluate and decide requests for waivers to the Office of Inspector General. 42 C.F.R. § 1001.1801(a). Any waiver request "must be in writing and from an individual directly responsible for administering the State health care program." Id. "The decision to grant, deny or rescind a request for a waiver is not subject to administrative or judicial review." 42 C.F.R. § 1001.1801(f). Thus, both the Act and the regulations clearly bar me from considering a waiver request. The case law in this area is consistent in this regard. See, e.g., Yvon Nazon, M.D., DAB No. 1376 (1992).

While Petitioner contends that if the Act limits a waiver as sole community physician or sole source of specialized services to cases where such a waiver is requested by a State, and subject to the discretion of the Secretary, which discretionary decision cannot be reviewed, then the Act is unconstitutional. Once again, I have no authority to rule in this area. 42 C.F.R. § 1005.4(c) states that an administrative law judge " . . . does not have the authority to . . . (1) [f]ind invalid or refuse to follow [f]ederal statutes or regulations or secretarial delegations of authority." See, e.g., Arlene Elizabeth Hunter, DAB CR505 (1997); Roberta Miller, DAB CR367 (1995).

While both parties discuss the merits of Petitioner's argument that he is in fact a sole community physician or provider of specialized services, it is unnecessary for me to examine and evaluate evidence or resolve these arguments since I have no jurisdiction to do so.

I uphold the I.G.'s imposition of the minimum five-year period of exclusion against Dr. Cocioba.

Marc R. Hillson
Administrative Law Judge